Stafford v. Adams

• Decision Date: 26 June 1905
• Citation: 88 S.W. 1130,113 Mo. App. 717
• Parties: STAFFORD v. ADAMS.
• Court: Missouri Court of Appeals

88 S.W. 1130

113 Mo. App. 717

STAFFORD v. ADAMS.

Kansas City Court of Appeals. Missouri.

June 26, 1905.

1. MASTER AND SERVANT — LIABILITY FOR INJURIES TO SERVANT.

It is negligence per se for the owner of a mill to fail to guard pulleys and belts, as required by Rev. St. 1899, § 6433.

2. APPEAL AND ERROR — REVIEW — WEIGHT OF EVIDENCE.

When the testimony of witnesses can reasonably be reconciled to the physical facts, the appellate court will not reject it, nor weigh it, notwithstanding the weight of the physical evidence seems to oppose that given by witnesses.

3. MASTER AND SERVANT — INJURIES TO SERVANT — EVIDENCE.

In an action for injuries to plaintiff while employed in defendant's mill, evidence tending to show that the injury was caused by the unguarded condition of the machinery considered, and held sufficiently reconcilable to the physical facts to prevent its rejection by the court.

4. SAME — ASSUMED RISKS.

When the master has failed to exercise ordinary care, or has ignored the requirements of the statute, the fact that the dangers resulting from his dereliction are obvious will not excuse him from liability on the ground of assumed risk.

5. SAME — QUESTIONS FOR JURY.

In an action by a servant for injuries, it appeared that plaintiff, while working in defendant's mill and in performance of his duties, was standing near a wheel which had been left unguarded, in violation of statute. He saw a stick on the point of falling into the wheel, and attempted to seize it for the purpose of throwing it out of the way, and while in this act the stick moved into the wheel, violently struck his hand, and forced it into contract with the teeth of the saw. Held, that the court cannot say that plaintiff was guilty of contributory negligence in working with the machine in its unsafe condition, and that the issue was properly left to the jury.

6. DAMAGES — ACTIONS — INSTRUCTIONS.

Where the petition contained no averment of loss of earnings from the date of the injury to the time of bringing suit, it was error to make such damages an element in the instructions given.

7. APPEAL AND ERROR — DISPOSITION OF CAUSE.

Where the petition contained no averment of loss of earnings from the date of the injury to the time of bringing suit, and such loss was made an element of damage in the instructions, and plaintiff's testimony that he had lost all of his time from the date of injury and that the value thereof was a certain sum per week was uncontradicted, the court may assume that the jury estimated his lost earnings at that rate and order a remittitur; there being no other error.

Appeal from Circuit Court, Jackson County; James Gibson, Judge.

Action by Robert B. Stafford against Charles E. Adams. From a judgment in favor of plaintiff, defendant appeals. Remittitur ordered.

Rehearing denied October 2, 1905.

Boyle & Guthrie, for appellant. L. A. Laughlin and C. Y. O. Pugh, for respondent.

JOHNSON, J.

Plaintiff, injured while in the service of defendant, charged that the negligence of the latter was the direct cause of his injury. In addition to a general denial, defendant in his answer pleaded assumption of risk and contributory negligence. At the conclusion of the evidence defendant unsuccessfully requested the court to direct a verdict for him. Plaintiff recovered judgment in the sum of $1,074. Defendant assigns as error the refusal of the court to sustain his demurrer to the evidence.

One of the claims advanced is that plaintiff failed to show that the negligent act complained of caused the injury. No evidence was offered by defendant, and the relevant facts disclosed in that introduced by plaintiff are these: Defendant at the time of the occurrence in question, October 23, 1903, owned and operated a factory in Kansas City for the manufacture of certain articles of furniture. Installed therein, and in use, was a certain sawing machine, called a "ripsaw," operated by steam power. The component parts of the machine were mounted upon a metal table 3 feet high, in the top of which a circular saw 16 inches in diameter was vertically set to freely permit its revolution. The table top, horizontal in position, was 3 feet long, 2 wide, and about 1 inch thick, and projected in all directions over its supporting die, which extended upward from one end of the base. The other end of the base carried a revolving shaft, upon which was set three wheels, two of which were used to communicate the power to the saw shaft, and the other to carry the belt coming from the engine room when it was desired to have the machine at rest. The latter wheel was called the "loose wheel," because it turned upon the center shaft and did not transmit power thereto. This function was performed by one of its companions, called the "fixed wheel." The third wheel, also, was fixed to the center shaft and carried a belt running to the saw shaft, causing it and the attached saw to revolve. The saw was set on one side of the die, and about 6 inches thereof extended above and 10 inches below the plane of the table top. The machine could not have been operated, had the part of the saw above the table been inclosed; for it was there the sawing was done. The saw below the table platform could have been inclosed without affecting its usefulness, but defendant says this was unnecessary, because of its isolation by the projection of the sides and ends of the platform. The wheels and belts described could have been guarded as required by the statute (section 6433, Rev. St. 1899), but were not; and the right to recover is founded upon the negligence involved in defendant's omission to perform his duty in this respect. Plaintiff was injured late in the afternoon. During the day he assisted in the work of sawing certain boards to a required dimension. Another workman did the feeding, and plaintiff the off bearing; that is, he received the boards from the saw and piled them nearby. The waste strips of wood were permitted to fall from the end of the table to the floor in close proximity to the wheels. It was plaintiff's duty to clear away the debris, but it was the rule of the shop to do this cleaning at the close of the day's work. While the work was in progress, plaintiff's time was fully occupied in his other duties, and the only attention he could give to the pile of waste formed was to throw aside sticks that threatened to fall therefrom into the revolving wheels. Plaintiff, standing near this pile of waste, heard the noise of a stick being broken in one of the wheels. Looking, he saw what he took to be a part of the same stick on the point of falling into a wheel, and attempted to seize it for the purpose of throwing it out of the way. While he was in this act, the stick moved into the wheel, violently struck his extended hand, and forced it under the table top into contact with the teeth of the saw. All the fingers were severed, and the thumb wounded.

If any credit is to be given the testimony, defendant's negligence must be conceded in the consideration of the ruling upon the peremptory instruction. It was negligence per se for defendant to fail to guard the pulleys and belts. Rev. St. 1899, § 6433; Colliott v. Mfg. Co., 71 Mo. App. 163; Lore v. Amer. Mfg. Co., 160 Mo. 608, 61 S. W. 678; Bair v. Heibel, 103 Mo. App. 621, 77 S. W. 1017. The stock could not have fallen into the wheel had this duty been performed, from which it follows that the unguarded condition of the machine was the immediate cause of the injury. But defendant says that plaintiff's account of the manner of his injury is at variance with the physical conditions disclosed. While appellate courts uniformly refuse to weigh evidence, they do not renounce the right to reject entirely the testimony of witnesses found to be repugnant to physical law and facts. Testimony, to be entitled to any weight, must be within the bounds of reason. Failing in this, it cannot be denominated evidence, and should be cast out as devoid of probative force. But, when the testimony of witnesses can reasonably be reconciled to the physical facts, we will not reject it, nor weigh it, notwithstanding we may believe the weight of the physical evidence opposes that given by witnesses. It is the duty of courts to determine what constitutes substantial evidence, and the business of the triors of fact to settle conflicts therein.

Turning to the facts of this case, we see no reason for declaring the occurrence as detailed by plaintiff an impossibility. Considering that plaint...